1. On 7 May 2025, after the construction of the dwelling at 2A Hamilton Street, condition 1(k) was amended and now provides ('amended condition 1(k)'):

All first floor bathroom windows to be fixed and obscure (sic) to a height of 1.7m above the finished floor level. The requirement of this condition for first floor windows to be fixed does not apply to 2A Hamilton Street, Alphington, where the first floor bathroom window may be fitted with a window restrictor that opens outwards to 12.5 centimetres only from the bottom of the glazing.

1. The amendment of condition 1(k) sought retrospective approval of the first floor bathroom window at 2A Hamilton Street. This window is about 50cm wide and about 80cm tall, contains obscure glass and is able to be opened with a sill-mounted winder. The window is fitted with a window restrictor that restricts the opening of the window to no more than 10cm.
2. By email on 8 May 2025, Council confirmed to the applicant that Council had decided to amend condition 1(k) as set out above. This email communication confirmed the contents of a telephone discussion that took place between Konstantinos Notis and Daniel Croker, statutory planner at Council.
3. On 11 June 2025, the applicant commenced proceeding P533/2025 seeking an enforcement order under s 114 of the PE Act against the registered owners of 2A Hamilton Street ('enforcement proceeding').
4. On 25 August 2025, the Tribunal summarily dismissed the enforcement proceeding.
5. On 20 October 2025, the applicant commenced this proceeding under s 89(1)(a) of the PE Act ('cancellation application').

1. By order dated 5 November 2025, the Tribunal listed this proceeding for a practice day hearing for the following purposes:
   • to identify what is the land the subject of the application by reference to planning permit D/965/2004/B, a copy of which was not filed with the application;
   • to consider the status of any person who has filed a statement of grounds in the proceeding;
   • to consider whether the applicant was entitled to notice of the application to amend condition 1(k) of permit D/965/2004;
   • to consider whether the request to cancel permit D/965/20004 was made as soon as practicable after the applicant had notice of the facts relied on in support of the request; and
   • to consider whether the application should be struck out or summarily dismissed, or whether a further practice day hearing or preliminary hearing is required for this purpose.
2. Both parties provided written submissions to the Tribunal prior to the practice day hearing on 12 December 2025.
3. After hearing from the parties at the practice day hearing on 12 December 2025, I was satisfied that it was appropriate to provide the applicant an opportunity to respond to Council's practice day hearing submissions given that Council sought the application be summarily dismissed under:
   1. Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') on the ground that the application was not made as soon as practicable under s 89(3) of the PE Act; and/or alternatively
   2. Section 94A of the PE Act on the ground that it lacks substantive or objective merit and has no real prospect of success.

1. Division 3 of Part 4 of the PE Act deals with the cancellation and amendments of permits by the Tribunal.
2. The limited grounds on which a permit may be amended or cancelled are set out in s 87 of the PE Act as follows:

(1) The Tribunal may cancel or amend any permit if it considers that there has been -

(a) a material mis-statement or concealment of fact in relation to the application for the permit; or

(b) any substantial failure to comply with the conditions of the permit; or

(c) any material mistake in relation to the grant of the permit; or

(d) any material change of circumstances which has occurred since the grant of the permit; or

(e) any failure to give notice in accordance with this Act; or

(f) any failure to comply with section 55, 61(2) or 62(1).

(2) The Tribunal may amend any permit to comply with the building regulations made under the Building Act 1993 if a building permit cannot be obtained under that Act for which the permit under this Act was issued because the development does not comply with those regulations.

(3) The Tribunal may cancel or amend a permit at the request of -

(a) the responsible authority; or

(b) any person under section 89; or

(c) a referral authority; or

(d) the owner or occupier of the land concerned; or

(e) any person who is entitled to use or development the land concerned.

(4) Nothing in this Division affects the power of a responsible authority to amend a permit under Division 1A.

(5) The Tribunal cannot cancel or amend a permit granted by the Governor in Council under section 95.

(6) Without limiting the powers of the Tribunal, the Tribunal may, under this section, cancel or amend a permit that has been issued at its direction.

(7) The Tribunal must not cancel or amend a permit on a ground mentioned in subsection (1)(a), (c) or (f) unless there has been no application under Division 2 on that ground for review of the decision to grant the permit or of a condition of the permit.

1. The limits on the power of the Tribunal to cancel or amend a permit are set out in s 88 of the PE Act. That section provides:

What are the limits on the power to cancel or amend a permit?

The power to cancel or amend a permit under section 87 may be exercised -

(a) if the permit relates to the construction of buildings or the carrying out of other works, at any time before those operations have been completed; or

(b) if the permit relates to any other development of land, at any time before that development is substantially carried out; or

(c) at any time, if the permit relates to the use of land.

(Tribunal's emphasis)

89 Request for cancellation or amendment

(1) Any person who objected or would have been entitled to object to the issue of a permit may ask the Tribunal to cancel or amend the permit if -

(a) the person believes that the person should have been given notice of the application for the permit and was not given that notice; or

(b) the person believes that the person has been adversely affected by -

(i) a material mis-statement or concealment of fact in relation to the application for the permit; or

(ii) any substantial failure to comply with the conditions of the permit; or

(iii) any material mistake in relation to the grant of the permit.

(2) The request must be made in writing in accordance with the regulations.

(3) The Tribunal may refuse to consider a request under this section or section 87 unless it is satisfied that the request has been made as soon as practicable after the person making it has notice of the facts relied upon in support of the request.

(Tribunal's emphasis)

1. The matters that the Tribunal must take into account when determining an application to amend or cancel a permit are set out in s 90A as follows:

Matters which Tribunal must take into account

(1) In determining a request, the Tribunal must take into account the matters set out in section 84B(2) as if the request were an application for review.

(2) The matters set out in section 8B(2) are in addition to any other matters which the Tribunal can properly take account of or have regard to or is required to take account of or have regard to in determining a request.

1. Section 91(3) of the PE Act provides, in the case of a request under s 89(1)(a), the Tribunal must not direct a responsible authority to cancel or amend a permit on a request unless it is satisfied that -
   • it could not reasonably be expected the person to have been aware of the application for the permit in time to lodge an objection under Division 1; and
   • the person was substantially disadvantaged by the issue of the permit; and
   • it would be just and fair in the circumstances to do so.

1. The cancellation application relevantly states:
   • At item 24:

1. The cancellation application was accompanied by, amongst other things, a copy of the applicant's objection to the amendment of condition 1(k) dated 12 May 2025.

1. Although the bathroom window the focus of the applicant's objection to the amended condition 1(k) forms part of the dwelling on 2A Hamilton Street, it is the permit that applies to 2A, 2B and 2C Hamilton Street that the applicant seeks to have cancelled.
2. I find therefore that the land the subject of the application properly described is 2A, 2B and 2C Hamilton Street, Alphington.

WHAT CAN BE CANCELLED UNDER SECTION 89(1) OF THE PE ACT?

1. The subject matter of the power conferred under s 89(1) of the PE Act is a permit that has issued.
2. Section 75(a) of the PE Act makes a reference to the issue of a permit as a reference to the issue of an amended permit.
3. Once a decision has been made to amend a permit, the responsible authority must issue the amended permit in the usual way.[1] The resultant amended permit replaces the permit sought to be amended. The permit that issues is to be distinguished from the decision to amend a permit which is a decision that is reviewable under Division 2 of Part 4 of the PE Act.[2]
4. The power conferred on the Tribunal under s 87(1) of the PE Act to cancel a permit, is a power to cancel the whole of a permit, not part of it or to severe conditions from the permit. It is not a power to cancel only that part of a permit amended following a decision to amend a permit under ss 74 or 75 of the PE Act. Therefore, any application to cancel a permit that has been amended is an application to cancel the whole of the permit in existence at the date the application under s 89(1) is made.
5. The cancellation application in this matter expressly seeks to 'Cancel the Amendment to Planning Permit No. D/965/2004/B made May 2025'. On a literal reading of the cancellation application, the applicant does not seek to cancel the whole of the permit but to cancel the decision to amend the permit made in May 2025.
6. Section 87(1) of the PE Act does not confer a power on the Tribunal to cancel a decision to amend a permit; it confers a power to cancel a permit (whether previously amended or not). Therefore, in so far as the applicant seeks to cancel only that part of the permit amended by the decision of Council in May 2025, the cancellation application is arguably misconceived.
7. That being said, I am cognisant that the applicant was self-represented and that the oral submissions made on behalf of the applicant focussed on the desire to 'undo' the amendment to condition 1(k). Practically then, the applicant seeks the amendment of condition 1(k) to the version of that condition prior to Council's decision of May 2025.
8. Further, even proceeding on the basis that the applicant seeks an amendment to condition 1(k), s 88(a) of the PE Act operates to limit the Tribunal's power to cancel the permit (as amended) because the construction of the building has been completed.
9. Section 88 of the PE Act also applies to applications to cancel or amend a permit made under s 89(1) of the PE Act. Properly interpreted, the phrase 'at time before those operations have been completed' as it appears in s 88(a) of the PE Act should, in the case of the construction of buildings, be interpreted to mean the completion of the building works authorised under the permit the subject of the application under s 89(1) of the PE Act.
10. On the facts of this matter, the building work authorised under amended condition 1(k) had been completed before that decision was made because the amendment to condition 1(k) was sought retrospectively.
11. A literal interpretation of s 88(a) of the PE Act in these circumstances would lead to the outcome that a person could never make an application under s 89(1) of the PE Act to either cancel or amend a permit obtained retrospectively to authorise building works completed without a permit first being obtained. This outcome would confer a benefit on persons who construct buildings, undertake development or use land without first obtaining all necessary planning permissions. This is not a desired outcome given the objectives of the PE Act.
12. The more harmonious interpretation is that s 88 of the PE Act does not necessarily limit the Tribunal's power under s 87(1) of the PE Act where the permit sought to be cancelled or amended retrospectively authorises building work, development or use of land.
13. In any event, as neither party referred to the application of s 88 in their written or oral submission, I will not make any determination based on the application of s 88 to facts of this matter. Accordingly, I will now consider whether the cancellation application has been made as soon as practicable after the applicant had notice of the facts relied upon in support of it.

WAS THE APPLICATION BROUGHT AS SOON AS PRACTICABLE AFTER NOTICE OF THE FACTS RELIED UPON?

1. Section 89(3) of the PE Act empowers the Tribunal to refuse to consider an application under s 89 or s 87 unless it is satisfied that the request has been made as soon as practicable after the person making it had notice of the facts relied upon in support of the request.
2. If the Tribunal is not satisfied that an application for cancellation has not been brought as soon as practicable, then there is little utility in considering the substance of any arguments regarding whether the person bringing the application was entitled to be given notice.
3. In Phillips v Greater Shepparton CC (Red Dot) [2005] VCAT 653 ('Phillips'), the Tribunal stated:

1. I consider it relevant that section 89(3) refers to the person making the request having 'had notice of the facts relied upon in support of the request'. It does not speak about the person knowing of the grounds relied upon. The failure to give notice under section 52 is the ground relied upon to support cancellation or amendment of a permit. It is a question of law. The material fact that establishes the ground is the fact that they received no notice. When did the applicants know that they received no notice? When they discovered the existence of the dam. This was the point at which they had notice of the facts relied upon. 2. I do not accept that, in the case of failure to given proper notice under section 52, "notice of the facts relied upon" as set out in section 89(3) refers to an applicant's knowledge of the planning provisions or the legal requirement to be given notice. At the time when an applicant discovers that a use or development has commenced, the applicant should be aware of whether or not they have ever received notice about it. It is this discovery that constitutes the "notice" referred to in section 89(3). The requirement to act "as soon as practicable" thereafter acknowledges that an applicant will need time after making the discovery to make enquiries, to find out about any permit which may have bee issued, what rights the applicant may have and whether they were entitled to object in the first place. To suggest that "notice of the facts relied upon" means knowledge that the planning scheme required a permit to be obtained and notice to be given to the applicant would result in an interpretation that depends on establishing the subjective state of mind of an applicant rather than establishing an objective set of facts. The implications of such an interpretation are that a person may know of a use or development for years, but because they do not specifically inquire if a permit is required or has been issued, they can rely upon this ignorance to effectively "keep the door open" for an application to cancel or amend the permit. I do not consider that this is what section 89(3) allows. 3. The obligation to make proper or reasonable enquiries, which is implicit in section 89(3), is repeated in section 91(3)(a)(i). This provision provides that the Tribunal must not direct a permit to be cancelled or amended in the case of a request under section 89(1) unless it is certified that a person under section 89(1)(a), which is a category that the applicants claim to come within -

(i) could not reasonably be expected to have been aware of the application for the permit in time to lodge an objection under Division 1; and

In other words, it is not the actual state of knowledge of the person that is relevant, but what they could reasonably be expected to have been aware of.

1. On the facts before the Tribunal, the applicant had notice on 8 May 2025 that the amended permit had been issued by Council on 7 May 2025.
2. Council submitted that the applicant had knowledge that the bathroom window in question had not been constructed in accordance with the requirements of the original condition 1(k) and had made complaints to Council prior to the lodgement of an application under s 72 to amend that condition. Council also submitted that the applicant also had knowledge that Council had received an application to amend condition 1(k) and had engaged in communication with Council for a number of months prior to the issue of the amended permit in May 2025.
3. The conclusion that the applicant knew about the non-compliance with condition 1(k) and the application to amend that condition is supported by the contents of the one the documents filed by the applicant in support of the cancellation application. Relevantly, an email from Konstantine Notis to Daniel Coker on 12 May 2025 states:

As Azeem Pehlari wrote in his email to me on the 19 August 2024, the bathroom window of 2A Hamilton Street does not comply with plans nor the planning permit. It is evidence of 2A Hamilton Streets breaking of the Council's Planning Permit laws (in this case D/965/2004).

• "As per our phone conversation, we (Mark Bernhardt and I) did an inspection of the property and have spoken to the residents regarding the windows. We found that the window is not compliant to the current endorsed plans and council will take steps to get the residents to bring the windows into compliance."

1. The application under s 72 of the PE Act was lodged with Council on 9 January 2025.
2. Applying the approach in Phillips, considered objectively, the above demonstrates that the applicant had notice of the facts relied on from at least 19 August 2024 when Azeem Pehlari on behalf of Council informed the applicant that the bathroom window did not comply with the plans or the planning permit.
3. In any event, the applicant did not file the cancellation application until 20 October 2025, some four and a half months after the issue of the permit (as amended). The applicant submitted that it is relevant that the summarily dismissed application for enforcement orders (the subject of VCAT proceeding P533/2025 filed with the Tribunal on 11 June 2025) is relevant to the consideration of whether the cancellation application was filed as soon as reasonably practicable after notice of the relevant facts.
4. I do not agree. Section 89(3) of the PE Act clearly requires consideration of the timing of the lodgement of an application under s 89(1) of the PE Act. The application the subject of proceeding P533/2025 was found to be misconceived and it is not appropriate that the applicant acquires any benefit from his misconceived conduct when objectively determining whether I should refuse to accept the cancellation application under s 89(3) of the PE Act.
5. Accordingly, under section 89(3) of the PE Act, I refuse to accept the cancellation application on the ground that it was not made as soon as practicable after the applicant received notice of the facts relied upon for the bringing of the application.
6. Refusal to accept the application by the Tribunal under s 89(3) of the PE Act brings this proceeding to an end.
7. The following paragraphs considers Council's alternative submission that the cancellation application should be struck out under s 94A of the PE Act for lacking substantial merit or objective merit and having no real prospect of success.
8. For the reasons set out below, even had I found that the cancellation application was brought as soon as practicable after the applicant received notice of the facts relied upon, I would have summarily dismissed the application under s 94A of the PE Act.

(1) Despite sections 84A, 84AB and 84B, if the Tribunal considers it desirable in the interests of the just, timely and efficient determination of a proceeding under this Act, the Tribunal may actively manage the proceeding by doing one or more of the following -

(a) conducting all or part of the proceeding entirely on the basis of documents;

(b) imposing on a party a time limit on the making of submissions, or the examination of a witness, at a hearing;

(c) prohibiting or limiting the cross-examination of a witness at a hearing;

(d) imposing reasonable time limits, restrictions or conditions in respect of -

(i) the conduct of the proceeding; or

(ii) the conduct of a party;

(e) giving directions to ensure that the proceeding is conducted promptly and efficiently;

(f) identifying at an early stage the issues involved in the proceeding;

(g) deciding the order in which the issues in dispute in the proceeding are to be resolved;

(h) encouraging the parties -

(i) to co-operate with each other in the conduct of the proceeding; or

(ii) to settle the whole or part of the proceeding; or

(iii) to use appropriate dispute resolution;

(i) controlling the progress of the proceeding, including by -

(i) fixing timetables; or

(ii) dealing with as many aspects of a proceeding as it can on the same occasion; or

(iii) making use of technology;

(j) considering whether the likely benefits of taking a particular step in a proceeding justify the costs of taking it.

(2) In addition to subsection (1), the Tribunal may do either or both of the following -

(a) confine the proceeding to particular matters in dispute;

(b) summarily strike out or dismiss all or any part of the proceeding that in the Tribunal's opinion lack substantive or objective merit and has no real prospect of success.

(3) The Tribunal's power to do a thing referred to in-

(a) subsection (1) - is exercisable by the Tribunal constituted for the proceeding; or

(b) subsection (2) - is exercisable only by the Tribunal as constituted by a presidential member or a member who is an Australian Lawyer.

(4) The Tribunal may do a thing referred to in subsection 1(a) or (2)(a) or (b) whether or not all parties to the proceeding agree.

(5) Subsection 2(b) is in addition to, and does not limit or affect, section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

1. Council submitted that to succeed in an application under s 89(1)(a) of the PE Act, before directing a responsible authority to cancel a permit, the Tribunal must be satisfied under s 91(3)(a) and (c) that:
   • the applicant:
     • could not reasonably be expected to have been aware of the application for the permit in time to lodge an objection under Division 1; and
     • was substantially disadvantaged by the issue of the permit; and
   • it would be just and fair in the circumstances to do so.
2. Council further submitted that:
   • the applicant was aware of the application to amend condition 1(k) and that he expressed concern directly with Council about changing condition 1(k) which the applicant contended was imposed for his benefit;
   • the amendment to condition 1(k) does not objectively raise any substantial disadvantage to the applicant and even if it did, the applicant had engaged with Council about his concerns before the amendment application was decided; and
   • it would not be just and fair to cancel the permit because the applicant simply does not overcome the 'key pre-requisites' under s 91(3)(a) of the PE Act.
3. On the material before the Tribunal, I am satisfied that the cancellation application lacks objective merit and has no real prospects of success for the following reasons:
   1. There is no objective merit in the applicant's claim that the amended condition 1(k) results in an adverse impact on the applicant's privacy because the bathroom window remains obscured and cannot be opened further than 10cm because of the installed window restrictor.

Thus, overlooking is not possible through the obscured glass and no reasonable person would conclude that the small openings that occur when the window is opened to its full extent would provide any opportunity for a person using the bathroom as intended to overlook 15 Grange Street.

It is not reasonable to infer that even a person intent on overlooking through the very small opening created by extension of the window to the maximum 10cm permitted by the window restrictor, could position their face in such a way as to obtain any meaningful view out of the window towards 15 Grange Street.

1. The amendment to condition 1(k) does not engage any assessment under clause 55 of the scheme that applied to the amendment application.

I agree with Council that the operation of the relevant transitional provision at clause 32.08-7 results in consideration of clause 55.04 as it applied prior to the commencement of Amendment VC136 on 13 April 2017. Regard to that version of clause 55.04 leads to the conclusion that compliance with the objective of clause 55.04 (as at 12 April 2017) is not required by the amendment application because the window the subject of condition 1(k) is not a habitable room window as the bathroom to which the window is affixed is not a habitable room.

1. The applicant is fundamentally mistaken that Council was required to provide him notice of the amendment application because condition 1(k) was imposed on the original permit following an agreement reached at a compulsory conference at which he was a party.

Whether or not a person is entitled to notice of any application is a matter that is identified under the PE Act and the relevant planning scheme. On the facts of this matter, Council correctly identified that there were no matters requiring assessment under the planning scheme that would give rise to an obligation to provide notice to any person.

I note that the original version of condition 1(k) is not, despite its imposition on the original permit, a condition that is required to be imposed under the scheme on an assessment of the original planning permit application against the relevant provisions (because as noted above clause 55.04 did not apply to the original planning permit application) and therefore cannot be said to have been imposed for the purpose of advancing a planning outcome sought under the planning scheme.

1. In conclusion, had I not refused to accept the cancellation application under s 89(3) of the PE Act, I would have summarily dismissed the cancellation application under s 94A(2)(b) of the PE on the ground that it lacks objective merit and has no real prospect of success.